Secrets & Spies Government War on Whistleblowers March 6, 2014 SUPREME COURT CASE: US Government v. Robert MacLean... Air Marshal former Transportation Security Administration (TSA) US Government says whistleblowers should work through system... not bring their concerns directly into public sphere... MacLean trying to... Supreme Court Department of Justice (DOJ) wants to use MacLean case to limit information kind that can qualify for statutory whistle blowing protections... US Government v. Robert MacLean lower court ruled against US... US taking case to Supreme Court... If heard will be 1st federal whistleblower case post-9/11... ruling for government will withhold more information for national security... ruling for MacLean will secure more whistle blower protection... important because government wrongdoing revelations are front-page news... US Government v. Robert MacLean ISSUES: 1. who is entitled to whistleblower protection... 2. can retroactive classification be used to hide previously unclassified information... 3. how many informal classification categories can government create bureaucratically... 4. what is Constitution/ Supreme Court role... HISTORY: MacLean air marshal flying armed aboard American aircraft as last defense against terror attack... July 2003 air marshals received briefing of possible hijacking plot... TSA oversees marshals... TSA sent unencrypted open-air text message to cell phones cancelling several months missions to cut costs... MacLean feared cancellations during hijacking alert created danger for flying public... MacLean brought concerns to supervisor... response nothing could be done... MacLean brought concerns to Department of Homeland Security inspector general (DHS GI)... response nothing could be done... MacLean hoped public pressure would force TSA policy change... MacLean talked anonymously to reporter who broadcast story... 11 Congress members joined cause... TSA reversed policy... November 2003 TSA memo codified designation security sensitive information (SSI)... 2004 MacLean feared agency dress/ boarding policies facilitated passenger recognition of undercover marshals... 2004 MacLean in disguise on TV criticized agency dress/ boarding policies... message... on your next flight keep an eye out for young man in khakis with fanny pack/ large watch/ often wearing baseball cap... eyeing boarders from first class seat... TSA recognized MacLean voice... April 2006 TSA fired MacLean... MacLean contested through internal government channels... TSA retroactively classified the text message months after firing MacLean as SSI... federal workers leaking classified documents can be fired... MacLean as Air Force veteran asserted his status as protected whistleblower... MacLean has spent seven years in system to regain his job... GOVERNMENT CLASSIFICATIONS: 28 known classifications... no established reporting requirements... 3 official levels... confidential/ secret/ top secret... 3 official levels have formal definition/ use criteria... unofficial classifications called handling instructions... NOFORN/ ORCON... seen on some NSA documents Edward Snowden released... document level of classification can be questioned... standards for declassification exist... various supervisors shift classification levels as final reports/ memos/ briefings develop... system has accountability/ reviewability post-9/11 government classifies more information beyond Congress limits of classification.. various agencies invent designations like SSI... TSA admits on its website that an SSI stamp indicates an unclassified document on which it prohibits disclosure... ARGUMENT: at home you establish classification Spouse Sensitive Information that prohibits your partner from seeing family bank statements... MACLEAN WINS IN COURT: 2013 US Federal Circuit Court of Appeals confirmed US right to retroactively classify information... retroactive classification cannot return released information... retroactive classification can prevent further release of information... court ruled MacLean entitled to protection under Whistleblower Protection Act of 1989 (WPA) regardless of retrospective classification i.e., MacLean could not be fired... WPA limits protection to disclosures not specifically prohibited by law i.e., unclassified material... the court avoided question of whether someone could be fired for disclosing retroactively classified information... the court focused on whether SSI document is “classified”... the court affirmed formal classification laws of Congress i.e., “top secret” trump executive branch bureaucrat regulations... Constitution intended for legislative branch to make laws... legislative branch serves as check/ balance on executive branch... Congress legislates what is classified... what Congress legislates classified cannot be modified by executive branch memo... MACLEAN LAWYER: hailed court decision as restoring enforceability for Whistleblower Protection... WPA assures free public speech rights... Court ruled only Congress has authority to remove whistleblower rights... Agency-imposed restraints are not relevant for whistleblower protection rights... ruling made it clear TSA had fired MacLean in retaliation for legally protected whistle blowing... TSA should offered back his job... US APPEAL: January 27, 2014 DOJ petitioned Supreme Court to overturn lower court decision... DOJ is seeking authority to retroactively classify using non Congress legislated classification and fire... DOJ is seeking authority to decide Whistle blower legal protection entitlement... DOJ bringing the case via petition is significant... writs of certiorari/ certs... ask Supreme Court to overturn lower court decision... court sets its agenda... 10,000 certs/ year submitted... most lack merit/ set aside without comment... 100 of 10,000 chosen to move forward for possibly precedent-setting decision... government initiated certs average 15/ Supreme Court term... this aggressive stance seems to indicate Obama administration gives importance to preserving secrecy... it will be several months before we know whether court will hear case.... THIS IS WAR: MacLean want his air marshal job back by proving he was wrongly fired for an act of whistle blowing... Obama administration has charged 7 whistleblowers under Espionage Act... State Department whistleblower Stephen Kim plead guilty to lighten sentence when threatened with full force of WPA... In US v. Stephen Kim FBI named Fox News James Rosen as co-conspirator for receiving Kim information as part of his journalist job... granting government authority to fire a whistleblower for releasing unclassified information based on retroactive classification... 1. intent to silence whistleblowers before they speak... 2. result in frightened workforce... 3. force whistleblowers to do as Manning/ Snowden have done... 4. attempt to broaden executive power... Constitution only gives Congress power to prohibit actions under law... 5. executive seeks to create classification categories not prohibited by law... ex post facto law says one cannot be punished later for an act that was legal when it happened... Constitution expressly forbids ex post facto criminal laws... prohibition written in direct response to British Parliamentary laws unjustly criminalizing actions retrospectively... this is unconstitutional/ against right/ necessary in democracy... Thomas Jefferson said in a government of/ by/ for the people an educated citizenry is essential to democracy... it is imperative we know what government does in our name... in order to determine how to vote... who to support... what to oppose... Whistleblowers play crucial role in educating citizenry of what government is doing... we must not let government conceal its actions... this case seems to indicate that citizenry should be concerned because government has spent 7 years to weaken whistleblower protection... whistleblowers are revealing a scope of unconstitutional national security... government is demanding whistleblowers to work within the system... the modifies system to thwart the whistleblowers... we have got to bring America into compliance with the Constitution... compliance with the rule of law... ___________ Peter Van Buren... 24-year veteran Foreign Service Officer at State Department... spent a year in Iraq leading two Provincial Reconstruction Teams... Now in Washington DC... a Tom Dispatch regular... he writes about Iraq/ Middle East/ US diplomacy at his blog We Meant Well... 2011 book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People... published by American Empire Project... Metropolitan Books... Department of State began termination proceedings... reassigning him... stripping him of his security clearance/ diplomatic credentials... through Government Accountability Project/ ACLU efforts Van Buren will instead retire from State Department with full benefits in late September... We Meant Well is in paperback... Van Buren is working on second book about decline of blue-collar middle class in America and roots of the “99 percent”... Peter Van Buren blew the whistle on State Department waste/ mismanagement in We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People... Tom Dispatch regular... he writes about current events at his blog... We Meant Well... Van Buren book Ghosts of Tom Joad... Story of 99% due out March 2014...
Posted on: Sun, 09 Mar 2014 12:09:03 +0000
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